Sleepover Wages (Settlement) (The Dingwall Trust) Order 2012

Sleepover Wages (Settlement) (The Dingwall Trust) Order 2012: revoked, on the close of 18 October 2016, pursuant to section 7(2) of the Sleepover Wages (Settlement) Act 2011 (2011 No 98).

Jerry Mateparae, Governor-General

Order in Council

At Wellington this 10th day of December 2012

Present:His Excellency the Governor-General in Council

Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This order is administered by the Ministry of Social Development.

Pursuant to section 24 of the Sleepover Wages (Settlement) Act 2011, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, and on the recommendation of the Minister for Social Development (made after consultation with the Minister of Labour), makes the following order.

Order

1 Title

This order is the Sleepover Wages (Settlement) (The Dingwall Trust) Order 2012.

2 Commencement

This order comes into force on 14 December 2012.

Part 1 Preliminary provisions

3 Effect

The modifications and extensions of the Sleepover Wages (Settlement) Act 2011 made by this order do not affect the text of the Act but require it to be read as if it had been amended in the manner indicated in this order.

4 Interpretation

back wages means wages payable by The Dingwall Trust to its employees for sleepovers performed during the period beginning on 1 July 2005 and ending with the close of 31 October 2011 in accordance with sections 14, 15, and 16 of the Act (as modified by this order)

current employee, in relation to The Dingwall Trust, means an employee who is employed by The Dingwall Trust on the commencement of this order

qualifying employee means each employee of The Dingwall Trust who made a claim for sleepover wages by 5 pm on 17 February 2012 in respect of a sleepover performed on or before 31 October 2011

recent employee, in relation to The Dingwall Trust, means an employee who ceased employment with The Dingwall Trust at any time during the period beginning on 1 July 2005 and ending with the close of the day before the date of commencement of this order.

(2)

Terms defined in subclause (1) that are used in the Act and defined differently in this order have the meanings given by this order.

Part 2 Modifications and extensions of Part 2 of Act

Subpart 1—Extinguishing claims for sleepover wages

5 Extension of subpart 1 of Part 2 to employees of The Dingwall Trust (certain claims for sleepover wages extinguished)

Section 8 of the Act must be read as if the following subparagraph were inserted after subsection (1)﻿(a)﻿(ii):

(iia)

The Dingwall Trust:

6 Extension of section 9 to extinguish certain claims for sleepover wages by employees of The Dingwall Trust

Section 9 of the Act must be read as if “or The Dingwall Trust” were inserted after “Timata Hou”.

Subpart 2—Settlement relating to The Dingwall Trust

7 Extension of subpart 2 of Part 2 to The Dingwall Trust

(a)

(b)

each employee of The Dingwall Trust who performs or performed a sleepover.

8 Modification of section 14 (entitlement of current employees)

Section 14 of the Act must be read as if subsection (1) were replaced by the following:

(1)

A current employee of The Dingwall Trust is entitled to be paid back wages for a sleepover if the employee—

(a)

performed the sleepover during the period beginning on 1 July 2005 and ending with the close of 31 October 2011; and

(b)

made a claim for sleepover wages by 5 pm on 17 February 2012.

9 Modification of section 15 (entitlement of recent employees)

Section 15 of the Act must be read as if subsection (1) were replaced by the following:

(1)

A recent employee of The Dingwall Trust is entitled to be paid back wages for a sleepover if the employee—

(a)

performed the sleepover during the period beginning on 1 July 2005 and ending with the close of 31 October 2011; and

(b)

made a claim for sleepover wages by 5 pm on 17 February 2012.

10 Modification of section 16 (entitlement of historic employees)

For the purposes of the settlement with historic employees of The Dingwall Trust, section 16(1) of the Act must be read as if paragraph (b) were replaced by the following:

(b)

made a claim for sleepover wages by 5 pm on 17 February 2012.

11 Modification of section 20 (when back wages must be paid)

(1)

This clause applies instead of section 20 of the Act in relation to the entitlements of qualifying employees for back wages.

(2)

The Dingwall Trust must pay any back wages for a sleepover that are payable to a qualifying employee no later than 2 months after the date of commencement of this order.

12 Modification of sections 21 and 22 (entitlements for sleepovers performed after 31 October 2011)

(1)

This clause applies instead of sections 21 and 22 of the Act in relation to the entitlements of employees of The Dingwall Trust for sleepovers performed after 31 October 2011.

(2)

In relation to a sleepover performed by an employee after 31 October 2011, The Dingwall Trust must pay the employee the greater of—

(a)

an amount calculated by multiplying the number of hours in the sleepover by the relevant minimum hourly rate specified in subclause (3):

(b)

the amount the employee would have received for that sleepover immediately before the date of commencement of this order.

(3)

The amount payable for each hour of a sleepover that the employee performs during a period specified in the first column of the following table is the minimum hourly rate opposite that period specified in the second column of the following table:

Specified period

Minimum hourly rate

Period beginning on 1 November 2011 and ending with the close of 30 June 2012

50% of the applicable minimum hourly rate

Period beginning on 1 July 2012 and ending with the close of 31 December 2012

75% of the applicable minimum hourly rate

(4)

On and after 1 January 2013, The Dingwall Trust must pay an employee for each hour of a sleepover performed by the employee at not less than the rate of minimum hourly wage that applies under the Minimum Wage Act 1983.

(5)

To avoid doubt, this clause does not limit or affect any deductions that may lawfully be made to an amount payable under subclause (2) or (4).

Michael Webster,for Clerk of the Executive Council.

Explanatory note

This note is not part of the order, but is intended to indicate its general effect.

This order, which comes into force on 14 December 2012, modifies and extends the operation of the Sleepover Wages (Settlement) Act 2011 (the Act) to give effect to a settlement agreement between The Dingwall Trust and certain of its employees relating to the payment of wages to employees who were permitted to sleep overnight at their workplace while on duty (sleepover wages). The Act implements a settlement of litigation between Idea Services Limited and Timata Hou Limited and their employees (the Idea settlement). Subpart 1 of Part 2 of the Act extinguishes certain claims for sleepover wages in the health and disability sector, and subpart 2 of Part 2 of the Act implements the terms of the Idea settlement.

Subpart 1 of Part 2: Extinguishing claims for sleepover wages

The Dingwall Trust employs staff to provide certain services, including sleepovers, that are funded by Vote Social Development. Clause 5 modifies section 8 of the Act to extend the application of subpart 1 of Part 2 of the Act to The Dingwall Trust. The extension will prevent new civil proceedings being commenced relating to sleepover wages that could have been the subject of a claim extinguished under section 9 of the Act. Section 9 of the Act extinguishes claims by employees of Idea Services Limited and Timata Hou Limited for sleepover wages. Clause 6 extends the effect of section 9 of the Act to also extinguish claims by employees of The Dingwall Trust.

Subpart 2 of Part 2: Settlement relating to The Dingwall Trust

Clause 7 extends the application of subpart 2 of Part 2 of the Act (which implements the Idea settlement) to The Dingwall Trust and its employees, but with certain modifications that are set out in the following clauses.

Clauses 8, 9, and 10 (which modify sections 14, 15, and 16 of the Act respectively) apply to current, recent, and historic employees of The Dingwall Trust. Sections 14, 15, and 16 of the Act relate to the payment of back wages. The modifications ensure that—

the period of time in relation to which back wages are payable to employees of The Dingwall Trust is extended to the close of 31 October 2011; and

employees will be entitled to back wages for sleepovers if they made a claim by 5 pm on 17 February 2012.

Clause 11 modifies section 20 of the Act, which sets out when back wages must be paid. It provides that back wages due to employees of The Dingwall Trust must be paid not later than 2 months after the date of commencement of this order.

Sections 21 and 22 of the Act provide for a staged progression towards the minimum hourly wage payable under the Minimum Wage Act 1983. Clause 12 modifies those sections to implement the settlement agreed between the parties. The clause provides that,—

for the period 1 November 2011 to 30 June 2012, an employee of The Dingwall Trust is entitled to be paid 50% of the applicable minimum hourly rate for each hour of a sleepover:

for the period 1 July 2012 to 31 December 2012, an employee of The Dingwall Trust is entitled to be paid 75% of the applicable minimum hourly rate for each hour of a sleepover:

if an employee would have received a greater amount immediately before the date of commencement of this order, he or she will be entitled to that greater amount:

after 1 January 2013, an employee of The Dingwall Trust will be entitled to be paid 100% of the minimum hourly wage.

Reprints notes

1 General

This is a reprint of the Sleepover Wages (Settlement) (The Dingwall Trust) Order 2012 that incorporates all the amendments to that order as at the date of the last amendment to it.

2 Legal status

Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.